Mike Lee

Mr. LEE

Mr. LEE. Mr. President, I stand to raise a concern I have regarding the conference committee report to accompany H.R. 4348. Pursuant to paragraph 9 of rule XXVIII of the Standing Rules of the Senate, we are supposed to have adequate notice of a report like this before we have the opportunity to vote on it. The rule states: It shall not be in order to vote on the adoption of a report of a committee of conference unless such report has been available to Members and to the general public for at least 48 hours before such vote. The current version of the committee report was filed, as I understand it, at 8:07 p.m. last night. It is not even close to the 48 hours required notice. What we have, ultimately, when we look at this, is the fact that we have a highway bill that was sent to conference, but it came back from closed-door negotiations with a student loan bill and also with a flood insurance bill attached to it. We were neither given the chance to debate nor to amend these provisions before they came to the floor. Now we are approaching a vote on that. We did not provide our fellow Senators or the American people with an adequate opportunity to read the 596-page conference report, which is required by our very own rule. This is somewhat reminiscent of a statement made a few years ago by then-Speaker of the House Nancy Pelosi when, speaking to Members of her body regarding the passage of the Affordable Care Act, she said: We have to pass the bill so that you can find out what's in it. This is one of the problems we have in Washington of which the American people are becoming increasingly aware. It is a problem that I think we need to address. Time and again, we have a problem in which the Senate waits until the day before a holiday or the day before a scheduled instate work period before bringing something to the floor for a vote--without following the Senate's own rules, which are designed to promote and protect the openness and transparency of the legislative process. This is a troubling trend and one we should seek to avoid whenever and wherever possible.

Mr. LEE

Mr. LEE. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEE. Madam President, I rise today to speak about the Supreme Court's ruling this morning in the case involving the constitutionality of the Affordable Care Act's individual mandate. In that case, the Supreme Court rendered a decision that may be spun by many, perceived by many, as a victory for the proponents of the controversial individual mandate contained within the Affordable Care Act. I would submit today, however, that this victory, if it is being called that, will prove to be not only hollow but also short lived. I say that because, significantly, the Supreme Court was able to uphold the constitutionality of the mandate only by a series of gymnastics that allowed the Court to find this was a tax. First, the Court addressed the issue and concluded, for only the third time in the last 75 years--only the third time since 1937--that Congress had, in fact, exceeded its power as asserted under the commerce clause of the U.S. Constitution. Having concluded that Congress lacks the authority to compel commerce, the creation of commerce so that it could then regulate commerce, the Supreme Court went on to shoehorn this individual mandate provision into the Supreme Court's conception of Congress's taxing power. This awkward construction is one that exposes many of the true flaws of the individual mandate. The mandate itself, we must remember, was not wildly popular among the American people at the time it was enacted. It has become even less popular as the American people have come to understand it. A recent poll revealed that roughly 74 percent of Americans do not like the individual mandate. This is easy for us to understand when we think about the fact that we as Americans--we are born as a free people. We were intended to live as a free people. It offends our most basic sense of freedom to have one of the most personal decisions made for us by government--particularly by the impersonal, distant government that is based in Washington, DC. These kinds of decisions should be made by the individuals and families in consultation with their doctors, not by government bureaucrats in Washington, DC. So the fact that it is unpopular does not surprise us, and given the fact that the Supreme Court was able to uphold the individual mandate only by calling it a tax is very significant. It is especially significant given the fact that it was pitched to the American people as something other than a tax. The President promised us he would not raise our taxes. He promised us the individual mandate did not amount to a tax increase. He promised us all along that he would never raise the taxes of any American earning less than $250,000 a year. Well, those who participated in Congress who voted for this provision also promised us this would not amount to a tax increase. They did so for one simple reason: They knew it could not pass. They knew it would not be able to get the number of votes necessary to make it become law if they called it a tax. So they did not. They went to great lengths to make sure it was not described or characterized or structured as a tax within the text of the statute itself. Now, after the fact, the Supreme Court has taken the step of shoehorning this regulation into Congress's taxing authority, and it is calling it a tax, effectively insulating those Members of Congress who voted for it from the political liability attached to having voted for a tax increase--not just any tax increase but a tax increase that the Joint Committee on Taxation has concluded will be borne overwhelmingly by hard-working, middle-income earners. In fact, they have concluded that over 75 percent of the burden associated with this mandate that has now been deemed a tax will be paid by those earning less than $250,000 a year. It was unpopular before we were told it would be deemed a tax. Now that it is a tax, we cannot expect that its status as a tax will enhance its popularity. If anything, we can expect that it will become even less popular with the American people. For that reason, I am absolutely convinced that for those who call this a victory for the individual mandate, it will prove to be anything but a victory. It will prove to be something that will result in a groundswell of people contacting their Members of Congress, telling them they do not want their taxes raised, telling them that Members of Congress who voted for this promised them it would not be a tax increase, asking them, for instance, to vote on it, to decide once and for all whether they are willing now to call it a tax, given that was the only way in which it could be affirmed, upheld, as a valid constitutional exercise of Congress's power. As we move forward to the November elections, we are going to hear a lot about what people do not want out of their national government. We will continue to hear a lot from those people who are offended by this notion that the government can tell them where to go to the doctor and how to pay for it, who are offended by the notion that government would step in and tell Americans: You have to buy health insurance, not just any health insurance but that health insurance which Congress, in its infinite wisdom, has deemed necessary for every American to purchase. And if you do not, you are going to be penalized. If you do not, you are going to be taxed. People are going to be upset about this. They are going to complain to Congress and to candidates for Congress. They are going to complain to the President and to other candidates for the Presidency that this is not the kind of government they want. After they do that, they will proceed, and they will start talking about what kind of government they do want. That is where we have to move, away from the kind of government we do not want toward the kind of government we do want. The kind of government we do want today is, in so many respects, the same kind of government we as Americans have always wanted ever since our founding; that is, a government that at the national level recognizes limits to its power, recognizes that whenever government acts it does so at the expense of our individual liberty. When the Federal Government acts, to a significant degree it does so at the expense of our State governments, governments which are closer to the people and often more responsive to the needs and to the evolving demands of the people. This is not simply a technicality upon which we are involved in a discussion. This is a very important part of the political process. It is essential that any time we raise taxes, we do so in a way that is clear to the people and that we stand accountable to the people for raising taxes. The courts do not have the expertise to do that, and yet they exercised that power today. As the majority opinion today reminded: The Supreme Court of the United States possesses neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders who can be thrown out of office if the people disagree with them. This reminds me of one of my favorite quotes from our country's greatest Founding Father, George Washington, who said something very similar way back in 1789, when he explained: The power under the Constitution will always be in the people. It is entrusted for certain defined purposes and for a limited period to the representatives of their own choosing. And whenever it is executed contrary to their interests or not agreeable to their wishes, their servants can and undoubtedly will be recalled. This reminds us of the fact that we as Americans are in control of our own destiny as a nation. We as Americans are here and have the prerogative to explain what we want and what we do not want out of our government. The government exists to serve the people and not the other way around. The decision rendered by the Supreme Court today, while I disagree with it in many respects, is one that I predict will usher in a new era of robust debate and discussion over issues of federalism and individual freedom. That debate, I am convinced, will lead inexorably to the result that we as Americans will become more free, less captive to a government that tells us where to go to the doctor and how to pay for it, and that we as a people will again prosper as we regain our God-given right to constitutionally limited government. I yield the floor.

Mr. LEE

Mr. LEE. Mr. President, today I wish to honor Rick Craig, president of America First Federal Credit Union. Rick was appointed president of the credit union in 1997, and previously served as the executive vice president for two decades. He recently announced his retirement and I wish to honor his exemplary career. Rick is an alumnus of Weber State University, where he earned a bachelor of science degree in the field of mathematics with a minor in physics. He went on to earn a master's degree in the field of engineering from the University of Utah, and graduated in 1981 from the Western Credit Union National Association, CUNA, Management School. While in school, Rick earned the Charlie Clark Award and later was honored with the James D. Likens Alumni Recognition Award. He has also completed the Credit Union Executives Society's Directors Leadership Institute program at the London Business School. Over the years, Rick has been willing to share his knowledge with others, teaching courses at Weber State University and the Western CUNA Management School. Rick is a past board member of the Utah League of Credit Unions, and was vice chairman of the league's Executive Committee. From 1997 to 2003, he also served on the Governor's Board of Credit Union Advisors in Utah. He served on the Filene Research Council from 1999 to 2005, and he has been a member of the CO-OP Board of Directors since 2005. He has been a director of the Credit Union Executives Society, CUES, for 9 years, serving as chairman of the board. Rick was inducted into the Credit Union Society's Hall of Fame in 1996. Mr. Craig has received numerous honors for his work. Utah Business Magazine recognized him as one of the one hundred most influential people in the State of Utah in 2001, 2004, 2007, and 2011. He was recognized as one of the Ten Trail Blazing Companies in Utah in 2003 and in 2004, the national CUES named him Executive of the Year. Under his leadership, America First Credit Union was recognized as one of the best places to work in Utah in 2007. Craig has written numerous articles, including articles for CUNA and CUES magazines, as well as computer world. After 12 years as president, Rick Craig is leaving America First Credit Union on solid financial foundation. He has been successful at navigating the credit union through very turbulent financial times. Although Rick Craig has achieved great success in business, his greatest success has been being the father of 10 wonderful children. It is my wish that he and Karen enjoy this new chapter in their lives.

Mr. LEE

Mr. LEE. Mr. President, I rise today to express my support for the minority leader's decision to invoke the longstanding Senate tradition, known as the Leahy-Thurmond rule. Pursuant to this tradition and precedent, the Senate will cease confirming nominees to the Federal courts of appeals until after the Presidential election in November. Many of my colleagues from the other side of the aisle have previously affirmed the propriety of this rule and enforced its standard. For example, in the last year of the Bush administration, the majority leader noted that ``in a Presidential election year, it is always very tough for judges. That is the way it has been for a long time, and that is why we have the Thurmond rule.'' The chairman of the Judiciary Committee, who has cited the Thurmond rule more frequently than any other Senator, has likewise stated that ``in a Presidential election year, after Spring, no judges go through except by the consent of the Republican and Democratic leaders.'' Statements from several of my Democratic colleagues likewise confirm that it is proper to invoke the Leahy-Thurmond rule at this point in a Presidential election year. In 2008, for example, one of my colleagues on the Judiciary Committee argued that for Federal appeals court nominees, once ``it comes to June . . . generally everything stops in an election year.'' Indeed, on June 12 of that same year, another Judiciary Committee colleague stated that the Senate was already ``way past the time of the Thurmond rule.'' History further confirms the propriety of invoking the Leahy-Thurmond rule at this time. It is extremely rare for the Senate to confirm an appeals court nominee after June of a Presidential election year. In fact, it has happened only once in almost two decades, when in 2000 the Republican-controlled Senate confirmed one of President Clinton's nominees. It is simply not true, as comments from some of my colleagues have implied, that in recent Presidential election years we have confirmed appellate court nominees in July, August, or September. Moreover, this year we have already confirmed five of President Obama's Federal appeals court nominees. This, incidentally, is the same number of appeals court nominees the Senate confirmed in 2008, the most recent Presidential election year on record. In 2004 the Senate confirmed only four such nominees. Indeed, dating back over 100 years, from President William Howard Taft to President Obama, the Senate has confirmed an average of just four appeals court nominees during Presidential election years. This year we have already exceeded the historical average and confirmed five of President Obama's appeals court nominees. There is no reason to depart further from the historical norm and confirm additional nominees. The suggestion by some that application of the Leahy-Thurmond rule somehow affects court vacancies deemed ``judicial emergencies'' is false, and recklessly so. Of the four judicial emergencies on the Federal court of appeals, President Obama has nominated only one individual, and because that nomination was so recent, even absent the Leahy-Thurmond rule, that nominee would not be scheduled for a vote anytime soon. I also remind my colleagues that Democrats enforced the Leahy- Thurmond rule in June 2008, during a time when there were twice as many judicial emergencies in the circuit courts as there are right now. Likewise, the overall vacancy rate on our circuit courts was much higher in June 2004 when President Bush was in the final year of his term. Yet Democrats did not hesitate to block several qualified appellate court nominees in the months leading up to the 2004 Presidential election. Enforcement of the Leahy-Thurmond rule does not currently apply to district court nominees. This year the Senate has already confirmed 23 of President Obama's district court nominees--many more than were confirmed during comparable years during the President Bush and Clinton Presidencies. And we will continue to confirm more qualified nominees. Application of the Leahy-Thurmond rule, beginning now, will thus not implicate any district court judicial emergencies. The urgency for such vacancies lies not in the Senate, which to this day has acted responsibly on nominees, but with President Obama, who to this day has failed to nominate individuals for many of these seats. There are, I add, other good reasons in addition to tradition and historical precedent to enforce the Leahy-Thurmond rule now rather than waiting longer to do so. Doing so now prevents a particular President from packing the courts at the end of his term by appointing influential, life-tenured appellate court judges whose service will span numerous other Presidential administrations. The Leahy-Thurmond rule also ensures that Presidential politics during an election season will not overshadow or interfere with the Senate's advice and consent role on such judicial nominees. The last point bears special emphasis. The Constitution assigns to the Senate the right and the duty to advise and consent to the President's judicial and executive branch nominees. It is essential for the Constitution's separation of powers that the Senate protect its necessary and legitimate role in the nominations process against encroachment by the executive branch of government. Earlier this year, we witnessed a troubling demonstration of what can happen when the President violates the Constitution's separation of powers and tramples on the Senate's rightful prerogatives in the advise and consent process. On January 4, 2012, at a time when the Senate was conducting brief sessions approximately every 72 hours, President Obama nonetheless bypassed the Senate and unilaterally appointed four significant executive branch nominees. By asserting the power to make recess appointments, even when the Senate--according to its own rules-- was not in recess, the President simply ignored the Senate's legitimate constitutional right to advise and consent to nominees made by the President. President Obama's unconstitutional appointments cut to the very heart of our Constitution's separation of powers and the institutional prerogatives that rightfully belong right here, in this body. Accordingly, since the time of those appointments, I have sought to protect the Senate's interests by opposing President Obama's judicial nominees. I have made clear I would do the same were a Republican President to make similarly unconstitutional appointments under the recess appointments clause. As the chairman of the Senate Judiciary Committee noted at a recent Judiciary Committee hearing, I have stated my concern with President Obama's unconstitutional recess appointments very clearly, but I have also been, in his words, extremely responsible in my opposition and have not hindered the work of the Senate. In light of President Obama's unconstitutional appointments, it is all the more proper we invoke the Leahy-Thurmond rule now. I agree with the ranking member of the Senate Judiciary Committee that we should have invoked that rule back in January, at the time of the unconstitutional appointments. By enforcing the Leahy-Thurmond rule now, we will demonstrate for the historical record the Senate did not acquiesce in President Obama's unconstitutional recess appointments and, instead, took action to protect the Senate's institutional prerogatives. When we have done so, I will again be in a position to vote in favor of qualified consensus District Court nominees. But I will always remain vigilant in seeking to protect the Senate against unconstitutional encroachment by the executive branch. As Members of this body, we have an institutional responsibility to safeguard the Senate's essential advise and consent role and to confirm only those nominees who are properly qualified to serve in the positions for which they have been rightfully nominated. I yield the floor.

Mr. LEE

Mr. LEE. Madam President, in my approximately 20 seconds remaining, let me say that if we want to continue the same budgeting process that has put us nearly $16 trillion in debt, then we should proceed to vote against this. If, on the other hand, we want to turn this around and maintain our ability to fund essential government programs, we need to pass this. I urge my colleagues to support the motion to recommit, and I ask for the yeas and nays.

Mr. LEE. Mr. President, I introduce this motion to recommit to move us back to 2008 levels. We cannot continue to kick this can down the road in perpetuity. Our spending levels threaten to impair our ability to fund everything from defense to entitlements and everything that falls in between. This is a good start, and this is something that would cut the 10-year cost of this bill by $254 billion. We need to do it. We need to send it back to the committee, where the committee will have discretion on exactly how to accomplish that. I reserve the remainder of my time.

Mr. LEE. Mr. President, I have a motion to recommit at the desk.

Mr. LEE. Mr. President, I ask for the yeas and nays.

Mr. LEE. Only the Federal Government would try to defend the barbaric, outmoded practice of paying people billions of dollars not to use their land. That is what these programs do. We need to get rid of them. That is why I propose this amendment. I invite my colleagues to join me in supporting it.

Mr. LEE. Mr. President, I propose amendment No. 2314 to repeal the Conservation Reserve Program and the Conservation Stewardship Program. Here we have another instance of the Federal Government paying people not to use their land. In this circumstance, they are being paid not to grow crops on their land, not to use agricultural land. We have an almost $16 trillion debt. CBO says this amendment would save over $15 billion in mandatory spending over 10 years. Not doing something is something that should be free. Only the Federal Government would try to defend the practice of spending billions and billions of dollars--

Mr. LEE. Mr. President, I call up my amendment No. 2314 at the desk.

Mr. LEE. Mr. President, I offer this amendment to repeal the Forest Legacy Program. This is a program designed to protect lands in the United States. It is important to remember that the Federal Government is already a massive landowner. It has abundant programs already in place to conserve that land, to protect it. The Federal Government owns about two-thirds of the land in my own State. It owns nearly 30 percent of the land mass within the territorial boundaries of the United States. We do a lot to conserve that land. But when we use this money-- money estimated to amount to about $200 million a year in authorization, about $1 billion over a 5-year period--we are using that money to take land out of use. We are using that money to pay people not to use their land for anything. Whenever we look for areas in which we can save money, one area is to not pay people not to use their land.

Mr. LEE. Mr. President, I call up amendment No. 2313.

Mr. LEE. Mr. President, I ask for the yeas and nays.

Mr. LEE

Mr. LEE. Mr. President, today I wish to recognize the career of Police Chief Michael D. Lee, who is retiring after 34 years with the Kaysville Police Department. Chief Lee was the eighth officer hired by Kaysville City in 1977. He started as the first school resource officer for Kaysville and rose through the ranks becoming a detective sergeant in 1988. He was subsequently promoted to lieutenant over the Patrol Services Division, and in 2007 he became the captain of the Investigative Services Division. In 2008, he was named chief of police for Kaysville City and has served the citizens honorably. During his time at the Kaysville Police Department, Lee has helped to oversee the force's evolution into the 21st century. As new technologies have become available, Lee has pushed the department to continue to modernize, acquiring equipment ranging from advanced speed radar systems to laptops for patrol cars. Passing the tradition of public service from one generation to another, Lee's son, Jason, has entered into his own law enforcement career. He protects the public as a patrol sergeant for the Morgan County Sheriff's office. I join Kaysville Mayor Steve Hiatt and the local community in congratulating Michael D. Lee for his many years of dedicated service. I want to personally thank him for protecting and serving so many Utahns and bringing honor to a name that we share. His career is a testament to the accomplishments of hardworking police officers everywhere, and I congratulate him on his many achievements and 34 years of excellence.

Mr. LEE

Mr. LEE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEE. Mr. President, I rise today to express my support for S.J. Res. 37, and to express my deep and profound disapproval of the Obama administration's handling of the utility MACT rule. Let me first address what this debate is not about. This is not about a debate between one side that supports clean air and another side that does not. We all support and understand the importance of maintaining our pristine environment, maintaining the quality of human health in the ecosystem. My State, the great State of Utah, holds some of the greatest land resources in the country, some of the most beautiful landscapes. They are a source of pride for all Americans, and especially for all Utahns. They provide a significant economic benefit for my State in the form of tourism dollars. I would not support any legislation ever that would damage our environmental brand in Utah or that would harm our environment. What this debate does expose is this administration's vigorous, unfettered attempts to severely limit the use of coal technology and a complete and utter disregard for the economic benefits of this industry, and the economic effects of this kind of overly aggressive regulation. If implemented fully, the utility MACT rule would give utilities nationwide 3 short years to fully complete very costly upgrades to their plants. Many industry experts believe that these standards are nearly impossible to meet in that timeframe. Utilities will need closer to 5 or 6 years to make the necessary upgrades required by this regulatory scheme. Those who are unable to comply will have no choice but to shut down unless or until they can meet those standards. This inevitably, with absolute certainty, will result in sharp spikes to energy costs, increased power bills for all Americans, affecting the most vulnerable among us the most severely. Higher energy costs will, in turn, have a direct impact on the family budget. The more we as Americans spend on higher energy costs, the less we have available for savings, for education, and for other priorities. Although the President campaigns around the country by trying to convince Americans that he knows how to create jobs, this rule alone has been estimated by some industry experts as likely to kill 180,000 to 215,000 jobs by 2015. So one has to wonder why it is this administration is nonetheless imposing rules it knows cannot be met, and that if they must be met, will kill this many jobs and hurt this many Americans. Why are they ignoring the obvious economic consequences of shutting down an industry that produces about half of all of the electricity we use in the United States of America today? It does not make any sense. We can have sensible regulations that keep our air and our water and other aspects of our environment clean. We need that. We want that as Americans. We can also have a balanced approach that considers the economic costs of new rules and restrictions on small businesses and on consumers. That is what we need. Utility MACT is an example of a regulation that does neither. It accomplishes none of these interests. I strongly urge my colleagues to support S.J. Res. 37. I stand with a growing bipartisan group of Senators, private sector unions, business interests that believe we can do better as Americans than imposing those kinds of regulations on the American people, and who also believe it is vitally important that when we do put these kinds of regulations on the American people we first have the kind of robust debate and discussion Americans have came to expect from their political institutions. Two separate provisions of the Constitution, article I, section 1, and article I, section 7, clearly place the legislative process, the power to make rules that carry the force of generally applicable binding Federal law, in the hands of Congress, not in an executive branch agency. The American people know this. They understand it. They expect it. They rely on it. Because they know if we pass laws the people do not like, that the people cannot accept, that kill jobs, that hurt those most vulnerable among us, that we can be held politically accountable come election time, every 2 years in the case of Members of the House, every 6 years in the case of Members of this body. When we circumvent that process, when we allow the lawmaking process to be carried out entirely within an executive branch agency consisting of people who, while perfectly well intentioned and well educated, do not stand accountable to the people, we insulate the lawmakers from those governed by those same laws. This is exactly why we need to exercise our authority under the Congressional Review Act by passing these resolutions of disapproval from time to time. But it is all the more reason why we need more lasting, significant reform, reform that can be had through the REINS Act proposal. This is a proposal that has already passed through the House favorably and needs to be passed in this body. It is a bill that would require for any new regulation promulgated that at the administrative level, any new regulation which qualifies as a major rule because it costs American consumers and small business interests, individuals, families, and all others in America more than $100 million in a year, it would take effect if and only if it were first passed into law in the House and in the Senate and signed into law by the President. This is how our lawmaking process is supposed to operate. This is a system that our Founding Fathers carefully put in place, assuring that those who make the laws and thereby have the capacity to affect the rights of individual Americans can and will be held accountable to the people for the very laws they pass. I tried to get the REINS Act up for consideration in connection with the Ag bill. We were not successful in doing that. Apparently some in this body, some in control of this body, were unwilling to have a vote on the REINS Act proposal as an amendment to the Ag bill. Sooner or later we need to have a vote on the REINS Act. We need to have this debate and discussion, to assure that the laws that are passed in this country are passed by men and women chosen by the people, accountable to the people, that we may yet still have that guarantee in our country, a guarantee of government of the people, by the people, and for the people. I suggest the absence of a quorum.

Mr. LEE

Mr. LEE. Mr. President, today I wish to recognize the exemplary service of Chief Aleck Shilaos, who has served in law enforcement for 43 years and as the chief of police for the city of Price, UT for 25 years. Shilaos began his career in 1969 as the first parking officer ever hired by the University of Utah. When the university's security force became an official police department, Aleck joined the police force. The school's biggest need for police stemmed from theft at the University Hospital, where felons from Utah's prison system would receive medical treatment. The crime wave was quickly stopped, saving the hospital untold long-term costs. In 1972, Shilaos accepted a position with the Lakewood, CO Police Department, where he served for a decade and continued to improve his merits as a nationally ranked pistol shooter. Those skills helped him to gain immediate respect from fellow officers when he joined the police force in his hometown of Price a decade later. Five years later, he was named chief of police in Price, a position he would hold for the next quarter of a century. Under Shilaos's leadership, the Price Police Department advanced into the information age. With Shilaos at the helm, Price began implementing technologies that increased efficiency and paved the way for the next generation of police officers. Shilaos graduated from the FBI National Academy in 1995, created his department's first detective division, and a new field training program. Additionally, Shilaos looked beyond his own department and helped to found a regional drug strike force and SWAT team, and implemented the DARE anti-drug program in local schools. Shilaos also fought a brave personal battle against non-Hodgkin's lymphoma. Diagnosed in 2010, the disease is now in remission. Shilaos recently commented that the good days now outnumber the bad ones. Aleck Shilaos has been an outstanding public servant for the city of Price, UT and will surely be missed. His career is an example of leadership, dedication, and commitment. I wish he and his wife Shirley a long and enjoyable retirement, and thank him for his dedicated service.

Mr. LEE

Mr. LEE. Mr. President, I rise today to express my opposition to the nomination of Andrew Hurwitz to the U.S. Court of Appeals for the Ninth Circuit. I would first note that this year we have already confirmed 25 of President Obama's judicial nominees. At this point in 2004, the last Presidential election year during a President's first term, the Senate had confirmed only 11 of President Bush's judicial nominees. At precisely the same point in 1996, during President Clinton's first term, the Senate had confirmed only three judicial nominees. So this year we have confirmed more than twice as many of President Obama's judicial nominees as we did during a comparable period for President Bush and more than eight times as many as we did for President Clinton. Of the nominees we have already confirmed so far this year, two are now serving as appellate judges on the Ninth Circuit. The Ninth Circuit is an important appellate court in America, with jurisdiction over about 60 million Americans--roughly 20 percent of our country's total population. Approximately one-third of all reversals handed down by the Supreme Court last term were from the Ninth Circuit. Indeed, the Ninth Circuit has developed something of a reputation for eccentric legal theories and unusual results. As one commentator suggested, ``There should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all the other cases.'' We should therefore exercise some caution in confirming yet another liberal nominee to the Ninth Circuit. But Mr. Hurwitz is not simply another liberal nominee. Mr. Hurwitz has sought to claim credit for one of the most controversial and constitutionally indefensible decisions in Supreme Court history--Roe v. Wade. In 1972, Mr. Hurwitz clerked for Judge Jon Newman on the U.S. District Court for the District of Connecticut. That year, as Mr. Hurwitz later put it: ``[t]he abortion issue dominated [Judge Newman's time],'' and Mr. Hurwitz helped Judge Newman write two key abortion decisions known as Abele I and Abele II. These two decisions established the conceptual groundwork for the decision that became known later as Roe v. Wade. They relied on a single discredited, historical account to conclude that Connecticut's abortion laws were not in fact passed to protect the life of the fetus; they relied on flawed science to conclude that there was no objective way of knowing when human life begins; and they relied on a fabricated and arbitrary legal framework of viability to analyze the competing rights of the individual and the State. Given the woefully misguided reasoning behind these decisions, one would assume that a former law clerk would keep quiet about his personal role in drafting opinions that lack serious constitutional grounding. Indeed, most former law clerks--who have a certain duty not to discuss internal deliberations--would consider themselves ethically bound not to talk about decisionmaking in individual cases, and certainly would not seek to attract public attention to their role in particular decisions. But Mr. Hurwitz did just that. In a 2002 law review article, Mr. Hurwitz recounted how he received a Supreme Court clerkship partly on the basis of his role in helping draft Judge Newman's 1972 abortion decisions. Mr. Hurwitz wrote that Justice Potter Stewart, who hired Mr. Hurwitz as a clerk at the Supreme Court, ``jokingly referred to [Hurwitz] as `the clerk who wrote the Newman [abortion] opinion.' '' And Mr. Hurwitz made clear that the opinion had a ``demonstrable effect'' on the Supreme Court's approach to abortion. My concern with respect to Mr. Hurwitz's asserted role in Roe v. Wade goes beyond his attempt to take credit for that decision. Mr. Hurwitz has been nominated to serve as a Federal appellate judge, and his endorsement of the reasoning underlying Roe v. Wade raises immense concerns about his constitutional jurisprudence. While Mr. Hurwitz continues to write about Roe with fondness, nostalgia, and even pride, most legal scholars--including many who hold very liberal political views--concede that Roe was an extraordinarily flawed legal decision. For example, Prof. John Hart Ely has written: [Roe v. Wade] is bad because it is bad constitutional law, or rather it is not constitutional law [at all] and gives almost no sense of an obligation to try to be. Prof. Lawrence Tribe has written: [B]ehind its own verbal smokescreen, the substantive judgment on which [Roe] rests is nowhere to be found. Prof. Akhil Reed Amar has written: Roe's main emphasis is neither textual, nor historical, nor structural, nor prudential, nor ethical: it is doctrinal. But here too it is a rather unimpressive effort. As a precedent- follower, Roe simply string-cites a series of privacy cases . . . and then abruptly announces with no doctrinal analysis that this privacy right is broad enough to encompass abortion. Prof. Cass Sunstein likewise has written: In the Court's first confrontation with the abortion issue, it . . . decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate solutions that might not occur to judges. Unlike these liberal legal scholars, Mr. Hurwitz fails to appreciate that Roe represents exactly the kind of constitutional activism Federal courts must avoid--inventing new rights without any substantive or significant constitutional analysis. Given the chance at his Senate Judiciary Committee hearing to disassociate himself from Roe v. Wade, Mr. Hurwitz did not do so. Instead, his only relevant response--an assertion also unpersuasively made by some of my colleagues--has been that his 2002 law review article was merely descriptive and did not express any personal opinion as to the merits of Roe. But to anyone who has reviewed Mr. Hurwitz's article and the laudatory tone with which it discusses the connection between Judge Newman's opinions and Roe v. Wade itself, this assertion simply is not credible. Mr. Hurwitz wrote that Judge Newman's opinions on abortion were ``memorable, innovative, careful, and meticulous.'' He described them as exerting a ``profound, critical, immediate, direct, and crucial'' influence on Roe v. Wade, which he described as a landmark opinion of the Supreme Court. Mr. Hurwitz cannot have it both ways. He cannot seek credit for his role in developing a jurisprudence that is unmoored from the Constitution and that has fundamentally disrespected human life, and then later claim he was only retelling a story. Mr. Hurwitz's attempts to take credit for, and subsequent refusal to distance himself from, constitutional decisions that lack serious constitutional foundation casts an unacceptable degree of doubt on his ability to serve in the role of a Federal appellate judge. Of the countless qualified individuals who would make excellent appellate judges to serve on the Ninth Circuit, President Obama chose to nominate the one person who, by his own account, was a key intellectual architect of the profoundly flawed legal arguments in Roe v. Wade--someone who fails to appreciate the illegitimacy of constitutional activism and who, even today, looks back on his role in that case with pride. It is for this reason that I urge all of my colleagues to vote against the nomination of Andrew Hurwitz.

Mr. LEE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEE. Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. LEE

Mr. LEE. Mr. President, I stand today to respond to what I believe are irresponsible and dangerous attacks on the legitimacy of the Supreme Court of the United States. Over a 3-day period, beginning on March 26 of this year, the Supreme Court held more than 6 hours of oral argument to address the constitutionality of the Affordable Care Act. I was privileged to attend each of those sessions, and I can say that as a lifelong student of the Constitution and as one who served as a law clerk at the Supreme Court of the United States, I was very interested to not only watch the arguments but also to read many of the briefs and follow each of the proceedings very closely. Like so many others who watched or read those proceedings, I was most impressed by the quality of the questions, the quality of the advocacy, and the overall discussion that took place in the Supreme Court. Through their questions, the Justices showed keen interest in the nature of the arguments made in support of ObamaCare. For example, Justice Kennedy asked whether, under the administration's theory of the commerce clause, there could be any meaningful limitation on the Federal Government's power under the commerce clause. He asked specifically, ``Can you create commerce in order to regulate it?'' Such questions and hypotheticals are common and they are a useful way by which lawyers and judges tend to test the basic principled limits enshrined in our Constitution. If the Federal Government may compel commerce so that it may regulate the resulting commercial activity, there would arguably be little, if any, limit to the scope of Federal power. There would be no aspect of our individual lives that the Federal Government could not dictate and control. Such an all-powerful authority is, of course, flatly inconsistent with the Constitution's doctrine of enumerated powers-- this principle that is perhaps more well-settled than any other principle within our almost 225-year-old founding era document. Based on the Justices' questions and oral argument, many commentators--myself included--have predicted that the Supreme Court may well choose to invalidate the individual mandate of the Affordable Care Act. Apparently anticipating this possible outcome, some of my colleagues, as well as President Obama, have made statements suggesting that it would somehow be improper for the Supreme Court to invalidate the Affordable Care Act. They have asserted that striking down an act of Congress such as this one would somehow amount to judicial activism and that that would otherwise be wildly inappropriate. They have criticized some of the questions asked by individual Justices, and they have even gone so far as to suggest that those Justices who might vote to invalidate the Affordable Care Act would do so for reasons representing bias or partisan political motivations. This reminds me of the old saying that you can often tell in a particular game which team is losing by which side happens to be yelling at the referee. In response to these false and, frankly, reckless statements, I would like to make three points. First, attempts to manipulate or to bully the Supreme Court, especially during deliberations in a particular proceeding, are irresponsible, and they tend to threaten the very fabric of our constitutional Republic. Each Justice has sworn an oath to support, defend, and bear true faith and allegiance to the Constitution and to discharge his or her duties faithfully and impartially. From time to time, politicians and others may disagree with the Court as to important constitutional issues or even on the merits of a particular case. I certainly feel that way myself from time to time. But it is simply inappropriate for elected representatives--who themselves have sworn an oath to the Constitution--in a spirit of partisanship, to question the honesty and impartiality of our Nation's highest Court in what could be perceived as part of an effort on the part of those elected politicians to influence a case pending before the Supreme Court. Second, criticisms of the well-established principle of judicial review grossly misrepresent how our constitutional Republic functions. President Obama and some Members of this body have suggested that the judiciary--which they sometimes denigrate as a group of unelected people--should simply defer to Congress. But, of course, each branch of government, including the judiciary, has an essential duty under the Constitution to police its own actions, to make sure that its own actions comply with the text, the spirit, and the letter of the Constitution. Congress and the executive branch should police themselves to make sure they don't transgress those limits. But when the political branches happen to overstep their own boundaries, their own legitimate limits--as I believe happened with the individual mandate--the Supreme Court can and indeed must enforce the Constitution. In a recent appearance before the Judiciary Committee, Justice Breyer explained, ``We are the boundary patrol.'' The Constitution sets boundaries, of course. That is what is at issue here. This foundational principle applies to popular laws just as much as it applies to unpopular laws. The vast majority of Americans--about 74 percent, according to one recent poll--oppose the ObamaCare individual mandate. The Supreme Court will not strike it down merely because it is unpopular, but the Court must do so if the mandate exceeds the authority granted to Congress under the Constitution. That is what is at issue. Third and finally, it simply is not the case that a court can properly be described as activist just because it enforces the Constitution's structural limits on Federal power. In this context, it is not altogether helpful to focus the discussion of whether the Court is acting properly on the contours of the words ``activist'' or ``activism.'' We have to remember that, for the Supreme Court, not acting to invalidate an unconstitutional law is every bit as bad, is every bit as repugnant to the rule of law and to the Constitution as it is for the Court to act to invalidate a law that is entirely justified on a constitutional basis. Both represent, both are the product of a betrayal of the Supreme Court's duty to decide cases according to the laws and to the Constitution of the United States of America. When the Supreme Court acts to enforce the Constitution's limits on Federal power--as I expect it may do in the Affordable Care Act case-- it does so pursuant to specific textual provisions of the Constitution. Enforcing the law in this undeniably legitimate matter is not activist; rather, it is an essential function of the judiciary in preserving the liberties guaranteed by our Constitution. Among those liberties, of course, are those protected by perhaps the most important fundamental component of the Constitution, this notion that we are all protected when the power of Congress and the power of the Federal Government as a whole is restricted. This is why James Madison appropriately observed that it was with good reason that the Founding Fathers reserved to the States powers that he described as numerous and indefinite, while describing those powers that were vested in this body as few and defined. We are all safer, we are all more free, we are all more prosperous to the extent that we stand by this most important fundamental precept of the Constitution. That is what is at issue in this case. I hope and I trust that, moving forward, President Obama and my colleagues in this body will refrain from attempting to bully the Supreme Court or seeking to misrepresent the Court's important work in fulfilling its constitutional duties. Let's stop yelling at the referees and let the Supreme Court do its job while we do ours.

Mr. LEE

Mr. LEE. Mr. President, today I wish to congratulate the city of Richfield, UT, for winning the Joining Forces Community Challenge. This honor is of exceptional note as Richfield was the only municipality chosen as a finalist in the competition. The Joining Forces Community Challenge was launched in July of 2011, seeking to encourage and promote creative ways of showing support for members of the military and their families. Citizens of Richfield have been strongly supportive of military personnel and their loved ones for years, especially the men and women who are stationed in and around Richfield. The 2nd Battalion, 222nd Field Artillery unit of the Utah National Guard is based out of Richfield, and has been deployed four times since September 11, with soldiers going to both Iraq and Afghanistan. Nicknamed the ``Triple Deuce,'' the 222nd is beloved in Utah, and the extraordinary community support made for a perfect submission to the challenge. Local businesses have found numerous ways to throw their weight behind the unit. Many of them offer discounts and special service to members of the 222nd and their families, and include messages of support in their advertising. Richfield's newspaper, the Richfield Reaper, sends free copies to deployed servicemembers and often prints photos sent in by soldiers so that family, friends, and neighbors can stay connected back home. Richfield City covers utility bills in full for the families of deployed soldiers. In 2005, the Richfield Chamber of Commerce organized a campaign that came to be known as Coins for a Camouflage Christmas. The goal was to throw an extraordinary Christmas party for military families during the holidays while the 222nd was deployed on an 18-month-long mission in Iraq. Participating businesses kept special containers next to their cash registers for donations, and asked customers for their spare change. Tens of thousands of dollars were collected, and in addition to the party, each child of a deployed parent received a special gift from that parent delivered by Santa Claus. In 2011, when it was thought that the unit would again be deployed over Christmas, Coins for a Camouflage Christmas was organized once again. Rather than throwing a party for the families of deployed soldiers, Richfield got to throw a welcome home party for soldiers who had come back earlier than scheduled as American forces withdrew from Iraq. The Richfield library has joined in the effort to support the 222nd. After discovering that one daughter of a deployed soldier was trying to learn about Iraq because her father was there, the library put in a special order for books describing the places where parents in the unit were deployed. When the books were received, the library held a special gathering to introduce the new material. City and community leaders were also instrumental in creating and signing onto the military's Community Covenant Outreach Program in Richfield. Participants promise soldiers and their families support and services from Richfield. As part of the program, two large Community Covenant signs were built at each end of town to show visitors how much Richfield cares about military families. Perhaps most importantly, the Richfield community has contributed more than a quarter of a million dollars to build a veterans memorial. The memorial is currently under construction and slated to be completed later this year. Richfield has demonstrated over and over again that it is a community that cares deeply about the men and women who fight to keep us safe and free. The special love for the Triple Deuce is a shining example of how a unit should be supported by local communities around the country. I sincerely thank my fellow Utahns in Richfield who continue to set a high standard of excellence in showing love and respect for our brave heroes. Finally, I add my grateful appreciation to all of our men and women in uniform.

Mr. LEE

Mr. LEE. Mr. President, the true greatness of our Nation lies in the power and promise of the American dream. Unfortunately, for many individuals and families, this dream has become a national nightmare. Without the clear priorities and accountability of a budget, we continue to careen toward the economic cliff, with our massive debt and trillion-dollar deficits threatening the prosperity of Americans from every walk of life. To put it simply, we must change course. Restoring the American dream will require more than clever bumper sticker slogans. While optimism is an important part of the American dream, hope simply is not a strategy for the kind of course correction our country desperately needs. Doing nothing is no longer an option, although this President and this Congress have attempted, by not having a budget, to convince the American people that doing nothing is somehow the only option. Ignoring our broken entitlement programs, maintaining our complex Tax Code, and pretending we don't have a spending problem ensures that our economy will never truly recover and that the American dream will not be restored. The good news for Americans is that many of us do have solutions to confront and correct the country's most pressing challenges. In today's debate and discussion, the Nation has seen that changing course and balancing our budget doesn't have to take 30 years, nor does it have to require the kinds of drastic cuts that could devastate America's most vulnerable citizens. As we conclude this debate, I remind my colleagues of the old adage that ``you can make excuses or you can make progress, but you cannot make both.'' Given the gravity of our current situation, we should also recognize that our present path is unsustainable. A course correction is coming; the question we will be held accountable for answering is whether that correction comes by choice or as a consequence of making excuses and doing nothing. The Saving the American Dream Plan, which I have proposed, puts us on a sustainable and affordable path toward economic growth. It reforms our Tax Code to make paying taxes a simple, transparent, and equitable process that regular people can perform on their own. It empowers families to save by making savings tax free, which in turn lowers their tax burden in a way that helps them and our economy. It establishes a single tax rate. It eliminates the payroll tax, helping all Americans-- especially those at the lowest income level--and it abolishes the death tax permanently. Under this plan, Americans will no longer be forced to navigate the complex web of countless loopholes--for people who don't need them--contained within a tax code that is longer than the works of Shakespeare. In addition to placing an enormous burden and imposing immense uncertainty on our people, such a tax system hides the true size and cost of government. This plan is simple, and it provides certainty for individuals and for businesses. Opponents of reform will play petty politics and prey on false fears about the government's ability to help the helpless. They claim that any course correction in entitlement or social service spending will damage the social safety net. The truth is that doing nothing will absolutely and completely destroy the safety net. If we do not change course, the collapse of safety net services for our most vulnerable Americans is certain, and it is certain to hurt most those who have the least. This plan saves Social Security by transitioning to a real insurance plan that provides income security for seniors and prevents sudden poverty as a result of unforeseen events. The affluent elderly, such as Warren Buffett, will see a decrease in benefits. This plan will allow people like Mr. Buffett to help in a way that is actually good for our economy and job creators. The Saving the American Dream Plan also ends the government takeover of health care and puts dollars and decisions back into the hands of families and individuals and their doctors. Just like school choice allows parents to make sure their kids don't get stuck in a failing school system, this plan ensures families don't get stuck in a failing health care system. Finally, this plan acknowledges that we have a spending problem and works to reduce the size of government, eliminate waste, lower the future burden on taxpayers, encourage productive economic activity, and enhance individual liberty and choice. It reins in spending by a total of $9.6 trillion over 10 years when compared to President Obama's budget and by $7.1 trillion as against the CBO baseline. Supporters of the status quo will have every excuse as to why this budget or that budget won't work, but now is the time to stop making excuses and start making progress. Today we will vote on five budget proposals, but this is only the beginning of the discussion. I can say confidently that Republicans have done a tremendous amount of work to craft proposals to begin to change our course and move our country in the right direction, in a sustainable direction. The President's budget reflects the status quo: Do nothing, keep our complex Tax Code and broken entitlement programs, and ignore spending. As for Senate Democrats, for 3 straight years they have refused to participate in this discussion except to criticize ideas they don't like. Leadership is what leadership does. For the past 1,113 days, our country has suffered from a lack of leadership. I ask my colleagues, if you cannot vote for these budget plans today, will you at least do the right thing for the country and put aside election-year politics, show true leadership, and work with us to explore and implement real solutions? We cannot stand by the status quo. We cannot decide by default to do nothing. The American people expect more, and they deserve better. We need every American to join us in finding the solutions that will enable us as a nation to change course. The Saving the American Dream Plan is about empowering individuals to define their own dream and ensuring they have every opportunity to make that dream reality. This is the greatest civilization the world has ever known--not because government made it great but because Americans continually reject the status quo, choose to change course when needed, and demand economic freedom, while ensuring individual liberty and the right to pursue happiness. This budget preserves the clear priorities and accountability we must have to jump-start the economy, create real jobs, strengthen the safety net, and restore the American dream. I thank the Chair.